Case: 21-2237 Document: 32 Page: 1 Filed: 10/17/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TARRIE RUCKER, SR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2237
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5256, Judge Scott Laurer.
______________________
Decided: October 17, 2022
______________________
JOHN D. NILES, Carpenter Chartered, Topeka, KS, for
claimant-appellant.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM; JULIE HONAN, Y. KEN LEE, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Case: 21-2237 Document: 32 Page: 2 Filed: 10/17/2022
2 RUCKER v. MCDONOUGH
______________________
Before PROST, REYNA, and STOLL, Circuit Judges.
PROST, Circuit Judge.
Tarrie Rucker, Sr., appeals a decision of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) affirm-
ing a Board of Veterans’ Appeals (“Board”) decision deny-
ing him an earlier effective date for his service-connected
depressive disorder. We affirm.
BACKGROUND
I
Mr. Rucker served on active duty in the U.S. Army
from January 1980 to March 1990. In August 2008,
Mr. Rucker filed a claim with the Department of Veterans
Affairs (“VA”) seeking service-connected compensation for,
among other things, depression. In November 2009, a VA
regional office (“RO”) denied his depression claim but de-
ferred adjudicating a claim concerning a kidney condition.
Then, in September 2010, the RO denied the previously de-
ferred kidney-condition claim (along with a claim concern-
ing lupus, which Mr. Rucker had filed after the November
2009 RO decision).
In October 2010, Mr. Rucker submitted to the VA (1) a
Notice of Disagreement (“NOD”), stating that he “disa-
gree[d] with the [VA’s] decision dated September 17, 2010,”
and identifying the issue(s) in disagreement as “Lupus-
Kindey [sic] condition,” J.A. 74, and (2) a letter that simi-
larly expressed “disagreement on the decision” concerning
the “claimed lupus kidney condition,” J.A. 71. Mr. Rucker’s
October 2010 submission resulted in an April 2012 VA de-
cision awarding service connection for his kidney condition.
On May 8, 2013, Mr. Rucker filed another claim with
the VA seeking service-connected compensation for a men-
tal condition. In July 2017, the VA awarded service
Case: 21-2237 Document: 32 Page: 3 Filed: 10/17/2022
RUCKER v. MCDONOUGH 3
connection for a depressive disorder. And, in a subsequent
decision, the VA assigned an effective date of May 8, 2013,
for the service-connected depressive disorder.
II
Mr. Rucker appealed to the Board, seeking an effective
date for his service-connected depressive disorder earlier
than May 8, 2013. The Board denied an earlier effective
date. It first cited the general rule that an effective date
for a service-connection award can be no earlier than the
date on which the VA received the corresponding claim.
J.A. 14–15 (first citing 38 U.S.C. § 5110(a); and then citing
38 C.F.R. § 3.400). The Board then found that, although
Mr. Rucker filed a claim concerning depression as early as
August 2008, the VA denied that claim in November
2009—and that decision became final after Mr. Rucker
failed to appeal it within a year. J.A. 17. Because “[o]nce
an [RO] decision becomes final, the earliest effective date
of service connection generally is the date of the application
to reopen rather than the date of the initial claim,” the
Board examined whether anything after the November
2009 final decision but before his current effective date of
May 8, 2013, could be construed as a claim for service con-
nection. J.A. 17–18. The Board found nothing in that re-
gard; rather, in the Board’s view, the May 8, 2013 claim
supplying his current effective date was the next commu-
nication that could “conceivably” be construed as a claim
for his service-connected depressive disorder. See J.A. 18.
The Board accordingly kept the effective date at May 8,
2013.
Mr. Rucker then appealed to the Veterans Court, argu-
ing that the Board erred by failing to discuss whether his
October 2010 submission was a timely NOD with the No-
vember 2009 RO decision on the depression claim so as to
preclude that decision’s finality and potentially support an
earlier effective date. But the Veterans Court held that,
even “if the Board erred by not providing a more robust
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4 RUCKER v. MCDONOUGH
discussion or not addressing the October 2010 submission,”
J.A. 3, any such error didn’t prejudice Mr. Rucker because,
“as a matter of law,” the October 2010 submission “did not
satisfy regulatory requirements for what constitutes [a]
NOD,” J.A. 5.
The Veterans Court observed that the relevant regula-
tion required that a NOD identify “the specific determina-
tions with which [the claimant] disagrees.” J.A. 3 (quoting
38 C.F.R. § 20.201 (2010)). Yet, as the court noted, the Oc-
tober 2010 submission did not specifically identify—or even
suggest dissatisfaction or disagreement with—the Novem-
ber 2009 RO decision. Instead, it “clearly identified the
September 2010 [RO] decision”—the one that denied
Mr. Rucker’s lupus and kidney-condition claims. J.A. 4
(emphasis added). The court also cited the various in-
stances where the October 2010 submission specifically
identified the lupus and kidney-condition claims as the rel-
evant issue(s) of disagreement. J.A. 4–5. And it further
observed that the submission included medical information
“that exclusively addressed lupus and kidney problems.”
J.A. 5. Given the wording and context of the October 2010
submission, the Veterans Court concluded that the submis-
sion “could not support an earlier effective date” for
Mr. Rucker’s depressive disorder. J.A. 5. Therefore, any
Board error in not discussing it wasn’t prejudicial. J.A. 5.
Mr. Rucker timely appealed the Veterans Court’s deci-
sion to this court.
DISCUSSION
This court has limited jurisdiction to review Veterans
Court decisions. We “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or regu-
lation as applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). This court does, however, have jurisdiction to
“decide all relevant questions of law, including interpreting
constitutional and statutory provisions.” Id. § 7292(d)(1).
Case: 21-2237 Document: 32 Page: 5 Filed: 10/17/2022
RUCKER v. MCDONOUGH 5
The Veterans Court must “take due account of the rule
of prejudicial error” in reviewing Board decisions.
38 U.S.C. § 7261(b)(2). Mr. Rucker’s appeal to this court
challenges only the legal standard the Veterans Court used
to determine there was no prejudicial error here. We have
jurisdiction to address his challenge to that legal standard.
E.g., Slaughter v. McDonough, 29 F.4th 1351, 1355
(Fed. Cir. 2022). But because he has not demonstrated
that the Veterans Court used an incorrect legal standard,
we affirm.
Mr. Rucker argues that the Veterans Court applied an
“erroneously restrictive standard” in determining there
was no prejudicial error here. Appellant’s Br. 5. He main-
tains that, instead of the Veterans Court asking simply
whether the alleged Board error could have been prejudi-
cial, the Veterans Court improperly took it upon itself to
determine that correcting the alleged error would not have
changed the Board’s decision in Mr. Rucker’s favor. See,
e.g., Appellant’s Br. 24–25 (“But for the Board’s error, at a
bare minimum it could have reached a result . . . other
than denial. The Veterans Court exceeded its jurisdiction
when reviewing not merely whether the Board could have
reached that different result but, instead, whether in the
Veterans Court’s own view of the law and facts the Board
would have done so.” (emphasis in original)).
Mr. Rucker is correct that showing prejudice does not
require a claimant to establish that, but for the error, the
result absolutely would have been different. See Slaugh-
ter, 29 F.4th at 1355 (“[P]rejudice can be shown by demon-
strating that the error affected or could have affected the
outcome of the determination.” (emphasis added) (cleaned
up) (quoting Simmons v. Wilkie, 30 Vet. App. 267, 279
(2018), aff’d, 964 F.3d 1381 (Fed. Cir. 2020))); cf. Shinseki
v. Sanders, 556 U.S. 396, 410–12 (2009) (observing that the
burden of showing prejudice is not a “particularly onerous
requirement” and identifying a potential factor for
Case: 21-2237 Document: 32 Page: 6 Filed: 10/17/2022
6 RUCKER v. MCDONOUGH
consideration as “an estimation of the likelihood that the
result would have been different” (emphasis added)).
That said, the Veterans Court may affirm in the face of
an error if “the entire record makes evident that the Board
could not have reached any other decision.” Tadlock v.
McDonough, 5 F.4th 1327, 1337 (Fed. Cir. 2021) (emphasis
added); id. at 1336 (collecting cases and confirming the Vet-
erans Court’s ability to affirm on a ground not considered
by the VA or Board “if it is clear that the factual basis for
such conclusion is not open to debate and the Board on re-
mand could not have reached any other determination on
that issue”).
The Veterans Court did just that here. The October
2010 submission was in the record, and it says what it says.
The Veterans Court looked to its wording and context, com-
pared it to the relevant regulation’s requirements, cited in-
stances of the submission’s deficient specificity as to any
disagreement with the November 2009 RO decision on
Mr. Rucker’s depression claim, and ultimately concluded—
“as a matter of law”—that it “did not satisfy regulatory re-
quirements for what constitutes [a] NOD.” J.A. 4–5. In
other words, the Veterans Court considered the October
2010 submission’s status as a depression-claim NOD “not
open to debate.” See Tadlock, 5 F.4th at 1336. Indeed, its
conclusion makes that understanding clear: “[T]he submis-
sion could not support an earlier effective date for
[Mr. Rucker’s] depressive disorder.” J.A. 5 (emphasis
added).
Accordingly, we see no error in the legal standard the
Veterans Court used for assessing prejudicial error.
CONCLUSION
We have considered Mr. Rucker’s remaining argu-
ments and find them unpersuasive. Because Mr. Rucker’s
appeal to this court challenged only the legal standard the
Veterans Court used to determine there was no prejudicial
Case: 21-2237 Document: 32 Page: 7 Filed: 10/17/2022
RUCKER v. MCDONOUGH 7
error here, and because we see no error in that legal stand-
ard, we affirm.
AFFIRMED
COSTS
No costs.